Principles Of Legislative Syntax-The components of every legislative sentence

TABLE OF CONTENT A

1. How Drafters Should Fulfill Their Responsibilities
2. How Is Legislative Drafting Viewed By Users Of Legislation?
3. The Principal Characteristics Of Commonwealth Drafting
4. Advantages and disadvantages of a Central Drafting Office
5. Drafters’ Aims and Constraints On The Drafter
6. Forms Primary Legislation Take- Bodies That Have Power To Make Subsidiary Legislation
7. How Does Legislative Expression Compare With Other Forms Of Communication?
8. How Were Coode’s Foundations Built Upon?
9. How did Legislative Drafting Develop?
10. Importance of Legislative Drafting
11. Principled Drafting-How Have These Developments Influenced The Way In Which We Draft?

Principles Of Legislative Syntax-The components of every legislative sentence

To fulfil these general objectives, Coode made proposals concerning the components of legislative sentences and offered a number of other guidelines about the way sentences should be structured.

The components of every legislative sentence

Coode asserted that legislative sentences ought to have two core components, and may have two optional components:

i) The core components

(a) A legal subject:

A rule in a sentence must be directed to a subject who can respond to it. So, the subject must be one recognised by the law as a person upon whom a right, privilege or power can be conferred or an obligation or liability imposed. So the person to whom the rule is directed is its legal subject. Grammatically, the legal subject takes the form of a noun, modified as required to add greater precision; it is typically made the grammatical subject of the sentence.

(b) A legal action:

The legal action states what the legal subject may or may not, or must or must not, do, in order to confer the intended benefit. Grammatically, this takes the form of a verb, with an auxiliary
verb that directs how the subject is to be affected: "shall" (or "shall not") or "may" (or "may not"). The verb too may be modified (e.g. by the addition of an adverb) to give greaterprecision. This constitutes the principal predicate in the sentence.

Example Box 2

The subject and the action (predicate) are highlighted in the following: 10. A police officer [= subject] may arrest a person [=action/predicate] if the officer reasonably suspects that the person has committed an indictable offence.

Optional components

If a legislative sentence contains only a subject and an action, it constitutes a universal rule. Legal rules, however, are usually intended to have effect in particular circumstances or when
particular conditions arise. So, if the rule is not to have universal effect, one or both of the following must be added:

(a) The case: This prescribes the circumstances to which the rule is confined or in which the rule has its effect. Grammatically, this may take the form of a subordinate clause, beginning with "where" or "when" and having its own subject and predicate.
(b) The condition: This prescribes actions which, when performed, cause the legal rule to take effect or not take effect. Grammatically, this may take the form of a conditional subordinate clause, beginning with "if" or "unless" and having its own subject and predicate.

Example Box 3

Where a police officer has cause to suspect that a person is loitering with the intention of committing an offence in a public park [=case], the officer may request the person to leave the vicinity of the park, unless the person provides the officer with a reasonable explanation for his or her presence [=negative condition].

What Are The Effects Of This Approach?

It is scarcely surprising, with this general approach, that common law legislation is made up of a series of detailed and specific provisions directed towards required or permitted behaviour of persons or classes of persons identified in the legislation. The absence of expressed general principles in the legislation is understandable. Any reader of statutes drafted in Commonwealth countries will find these features familiar.

Coode’s Guidelines For Forming SentencesCoode's guidelines on how to select the components of legislative sentences should also be familiar to users of Commonwealth legislation, although a number of them have been modified by later practice.

(i) Selecting the legal subject:

a. The subject should be a legal person
The legal subject must be a legal person (individual or body) that the law recognises as capable of bearing rights, privileges, powers, liabilities or obligations. It can, therefore, never be, e.g. an animal nor an inanimate thing. For rules are intended to affect the behaviour of persons; they cannot be directed to dogs or disorders.
b. The legal person should be the grammatical subject of the sentence Typically, the legal subject should be the grammatical subject of the sentence. But an inanimate thing can be made
the grammatical subject, if the legal person affected is obvious from the sentence.
c. There should be only one legal subject in any sentence Typically, there should be only one legal subject to each legislative sentence.

d. The subject should be placed in a prominent position in the sentence
The subject should occupy a distinctive position in the sentence, preferably at or near the beginning of the sentence and before the verb (predicate).Example Box 4A person shall not use a guard dog at any premises unless the dog is under the control of that person at all times while it is being so used. The grammatical subject of the sentence is a legal person (applying to everybody with legal personality); it is in one of the two most
distinctive possible positions in the sentence - at the beginning (the
other would be at the end).
e. The subject should not be obscured
The legal effects of the rule will be less clear if the legal subject is obscured, e.g. because an inanimate thing, rather than the legal person, is made the grammatical subject.

Example Box 5

It is unlawful to use a guard dog on any premises unless the dog is under the control of a person at all times while it is being so used.
No guard dog shall be used on any premises unless the dog is under the control of a person at all times while it is being so used.
These two versions of the same rule obscure the precise persons to whom the prohibition applies. (Is it the owner of the premises, the handler, the user or the owner of the dog?). No legal person is
identified. The grammatical subjects are the inanimate "it" (sometimes termed a “false subject”) and a non-person "guard dog". A sounder approach is that in 

Example Box 4.

(ii) Selecting the legal action:
a. The action should contain a specific auxiliary verbThe legal action should contain a verb which is qualified by one or other of the following auxiliary verbs:

"shall" or "shall not" for: commands to act or not to act (duties); "may" or "may not" for: rights, privileges, and powers (or
absence of them); "shall be" or "may be" for: liabilities.
b. The verb should be in the active voice The verb should, wherever possible, be used in the active voice; this facilitates making the legal subject into the grammatical subject and expresses the effect on the legal subject more positively. However, if the rule is to require the legal subject to submit to, or to be subjected to, some action or liability, the passive voice may be used, so long as it is clear, or if it is irrelevant or unnecessary to state, by whom that action is to be taken.

Example Box 6

A person trespassing on land occupied by an Oil Company may be prosecuted. A person arrested under this Act shall be brought before a magistrate as soon as practicable.

c. The action can contain several verbs
More than one verb (with the appropriate auxiliary) may be used in a legislative sentence to provide for the performing of a series of related legal actions, as long as the same legal subject is to perform them all.